I. Law of the Empire?

[T]he most serious crimes of concern to the international community as a whole must not go unpunished and [ ] their effective prosecution must be ensured…

—Preamble, Rome Statute of the International Criminal Court (1998)

The adoption of the Rome Statute on July 17, 1998, appeared to promise a future free from impunity for perpetrators of those crimes considered most heinous by the international community including genocide, war crimes, and crimes against humanity.6 More than ten years after its entry into force on July 1, 2002, the ICC has laid down indictments for more than 30 individuals, all Africans, and all arising from eight situations on the African continent.7 ICC detractors will argue that the ICC’s track record to-date evidences a form of “Law of the Empire”—characterizing the ICC as an anti-African and pro-western tool for discriminatory, or victor’s, justice. In response, former Chief Prosecutor of the ICC, Luis Moreno-Ocampo has referred to such claims as “baseless” and no more than a diversionary tactic propagated by those facing ICC prosecution.8

Proponents of the Africa-bias narrative argue that the ICC acts at the behest of the UN Security Council, three out of the five members of which remain non-State Parties to the Rome Statute.9 There are even claims that the Rome Statute, most notably Article 13, by subjecting nationals of non-States Parties to the reach of the ICC through Security Council referral, is in violation of international treaty law.10 Allegations of hypocrisy are further fueled by Security Council’s repeated incorporation of provisions immunizing its nationals operating within situations referred for ICC action.11

Perceptions of an Africa bias at the ICC are further compounded, perhaps with good cause, by a perceived shrinking of the gap between the goals and mission of the ICC and the political interests of the Security Council. Recent uprisings in Libya and Syria have drawn inevitable comparisons and engendered criticisms with regard to the ICC’s disparate response. In the case of Libya, the Security Council unanimously referred the situation to the ICC on February 26, 2011.12 The ICC opened an investigation in less than a week and issued arrest warrants roughly four months after the initial referral.13 Conversely, despite mounting evidence of war crimes and other human rights abuses arising from the Syrian uprising dating back to Spring 2011,14 the ICC has yet to even open an investigation.15 This inconsistency, coupled with the lack of ICC action in response to allegations of war crimes against nationals of the P5 and other strategically and economically dominant nations, supports the presumption that the ICC is a court created only for “African countries, only for poor countries.”16

Even historical proponents of the court, such as Human Rights Watch, have expressed concerns that the Security Council’s “failure to refer situations in Sri Lanka, Gaza, and—most starkly—Syria” has created the perception of an inconsistent commitment to justice undermining the credibility of the ICC.17 But are the allegations of institutional bias at the ICC warranted, and if so, do they really call into question the credibility of the ICC in effecting impartial justice for those individuals facing prosecution?

A closer analysis of the authorities provided to the ICC under the Rome Statute reveals that the perception of an Africa bias at the ICC is largely a product of two factors beyond the ICC’s control: 1) necessarily politicized actions, or lack of action, by the UN Security Council; and 2) jurisdictional constraints on the ICC’s proprio motu authority which limit the ICC’s ability to independently investigate alleged crimes. Under the Rome State, there are three situations in which the ICC may exercise jurisdiction, including:

1. Referral by a State Party to the Rome Statute (or ad hoc acceptance of jurisdiction by non-States Parties18);
2. Unanimous Referral by the Security Council; and
3. Prosecutor initiated proprio motu investigation (authorized by a Pre-Trial Chamber).19

Of the eight situations brought before the ICC to-date, four were referred by African States Parties to the Rome Statute (in order of occurrence—Democratic Republic of Congo, Uganda, Central African Republic, and Mali). The Security Council referred the situations on Darfur, Sudan and Libya. Because the ICC lacks control over the referrals described above (or the absence of referral in other cases) by States Parties or the Security Council, a rationale basis for determining institutional bias at the ICC might best be limited consideration of the ICC’s use of it’s proprio motu authority.

It is worth noting that both of the situations in which the ICC Prosecutor has initiated a investigation proprio motu are in Africa (Kenya and Ivory Coast). However, the Prosecutor’s discretion in utilizing the ICC’s independent proprio motu authority is governed by Article 13(c), Article 15, and Article 53(1),20 which limit the initiation of investigations proprio motu “on the basis of information on crimes within the jurisdiction of the Court”21 and which require the Prosecutor to consider whether there is a “reasonable basis to proceed” on legal grounds including jurisdiction.22 In effect, the ICC is unable to initiate an investigation proprio motu into alleged crimes that occur within the territory of a State that has not accepted the jurisdiction of the court (a non-State Party) with the exception of investigating persons accused of a crime in that territory who are a national of a State Party.

The impact of this treaty constraint should not be underestimated. African nations make up a significant bloc of States Parties to the Rome Statute, totaling 33 of 121.23 Further, many of the situations in which the ICC has not become involved, and which proponents of the Africa bias narrative cite as evidence of the ICC’s discriminatory selectivity, occurred or are occurring in nations that have yet to ratify the Rome Statute, or primarily implicate the conduct of nationals of non-States Parties. This includes situations such as those in the United States, Syria, Israel, Myanmar, Sri Lanka, Yemen, Pakistan, North Korea, and Iran. As a result, in these situations the ICC is dependent upon a Security Counsel referral.

The case of the ICC’s preliminary examination into the situation in Iraq is particularly demonstrative of these constraints. The ICC has opened preliminary examinations into ten situations beyond those involving a formal investigation outlined above, only two of which are in Africa. Preliminary examinations include those in Afghanistan, Honduras, Korea, Nigeria, Columbia, Georgia, Guinea, Iraq, Venezuela, and Palestine.24 The situations in Iraq, Venezuela, and Palestine have all been closed following a formal decision not to proceed to investigation.25 In the case of Iraq, the Office of the Prosecutor in its official response closing the case, reiterated that the ICC “[does] not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq” and due to Iraq’s status as a non-State Party, “the available information did not appear to satisfy the requirements for territorial jurisdiction.”26 Although the ICC was able to consider the potential criminal responsibility of nationals of State Parties operating in Iraq, including their culpability as potential “accessories to crimes committed by nationals of non-state parties,” the preliminary examination thus excluded meaningful analysis and findings on the criminal responsibility of nationals of non-States Parties including the United States.27

In light of jurisdictional limitations placed on the ICC’s investigative authority, and its position as “an independent international organization…not part of the United Nations system,”28 the ICC’s impartiality should be assessed independently of the political processes and state interests which inform Security Council actions and which produced the treaty limitations acting as a constraint on the ability of the ICC to universally investigate and prosecute violations of crimes over which it has subject-matter jurisdiction. With that in mind, it is critical that the State Parties and ICC proponents (government and non-government) explore potential reforms that will provide the ICC reputational protection against claims of Africa bias.

II. A Reform Proposal: Expanding the ICC Prosecutor’s Proprio Motu Authority

Mrs. Fatou Bensouda, the new Chief Prosecutor at the ICC, has forcefully defended the ICC as an institution uncolored in its approach to justice, calling for consistency and reminding the international community that in order for the ICC “[t]o be effective, to be just and to have a lasting impact, justice has to be guided solely by the law and the evidence.”29

In order for the ICC to protect its reputation as an independent and impartial tool of justice, the ICC must be able to demonstrate it is willing to follow the evidence wherever it might lead, including beyond the African continent. In doing so, the ICC will be able to distance itself from criticisms of bias resulting from Security Council selectivity and Rome Statute limitations on the scope of potential proprio motu investigations. To achieve this goal, this comment proposes a reform of the ICC’s proprio motu investigative authority to allow for and encourage universal investigation coupled with public reporting and potential requests for referral to the UN Security Council.

Such an expansion of the ICC’s proprio motu authority is achievable through amendment to the Rome Statute, which may be proposed by any State Party for later consideration at a subsequent meeting of the Assembly of States Parties.30 Adoption of an amendment requires the support of two thirds of States Parties, and its entry into force is contingent upon the acceptance of seven eighths of States Parties.31

This amendment might come in the form of a textual addition to Article 53, as provided for in the sample language below:

If the Prosecutor finds a reasonable basis to initiate an investigation under subparagraphs (a)(b)(c) above, notwithstanding a lack of satisfaction of the preconditions to the exercise of jurisdiction identified in Article 13, he or she is encouraged to initiate an investigation. If, at the conclusion of the investigation the Prosecutor finds sufficient evidence to conclude there is a reasonable basis to believe individual(s) committed crimes within the ICC’s subject-matter jurisdiction warranting their arrest, the Prosecutor shall publically report and submit such findings to the Security Council, and where appropriate, request the Security Council refer the matter in order to allow for the exercise of jurisdiction as provided for under Article 13(b) and proceed with a request for warrant of arrest under Article 58.

Of course, the Prosecutor’s expanded authority would be subject to same pre-trial authorization as currently required for an investigation proprio motu.

The proposed reform would protect the institutional credibility of the ICC by allowing ICC to universally investigate and act upon evidence of crimes within its subject-matter jurisdiction. This will distance the ICC from limiting, and arguably bias, politics amongst the Security Council and larger UN membership. Further, the ICC’s deterrence effect on non-State Parties will be strengthened in response to the potential for ICC investigation even absent Security Council referral and corresponding public pressure for Security Council referrals in the event there is sufficient evidence to warrant arrest. Although limited in circumstance, non-State Party governments that would welcome an ICC investigation, but which are unable to ratify the Rome Statute or temporarily accept jurisdiction of the ICC under Article 12(3)32 due to domestic political constraints, would also have the opportunity to cooperate with the ICC while maintaining a more neutral public stance on the ICC’s investigation.

III. Addressing Counterarguments

One might fault the above reform aimed at countering the Africa bias perception for perhaps missing the forest for the trees. The Security Council will still retain effective veto power over ICC efforts to pursue a prosecution of nationals previously beyond the jurisdictional reach of the ICC, and thus, functionally, the geographic distribution of ICC indictments and prosecutions may not deviate from the status quo.

However, the proposed reform could broaden the practical scope of ICC activities for several reasons. First, the Security Council would face significant public pressure to refer cases in which the ICC, following the completion of its proprio motu investigation, publicly reports there is a reasonable basis to believe individual(s) committed crimes within the ICC’s subject matter jurisdiction warranting their arrest. A formal request for referral from the Office of the Prosecutor to the Security Council would likely heighten existing political pressure on the P5, such as in the case of Syria.33 Secondly, because such a request for referral equates to a threat of immediate indictment upon Security Council referral, this also creates a significant bargaining chip for diplomatic processes aimed at convincing leaders to terminate ongoing abuses and prevent increasing numbers of victims. Additionally, the primary purpose of this reform is to disaggregate the ICC from criticisms, amongst them allegations of Africa bias, more properly aimed at political decisions made by members of the international community, and the Security Council in particular. Even if the Security Council fails to act on ICC requests for referral, the ICC will nonetheless realize reputational benefits for having pursued a referral.

The ICC’s perceived bias has also been raised on the basis of ICC decisions not to pursue full investigations outside of Africa even in countries where the ICC does not face jurisdictional challenges.34 However, under the proposed reform, the scope of preliminary examination in a situation such as Iraq would necessarily expand to include the potential criminal responsibility of nationals of non-States Parties, potentially resulting in a different outcome. Further, in situations such as Syria, where statements by Human Rights officials at the United Nations support the inference that a full investigation would be warranted,35 the ICC would be hard pressed not to utilize their new authority to move beyond the preliminary examination phase, undertake a full investigation, and submit a potential request for referral to the Security Council.

Lastly, the ICC might face difficulties in pursuing an investigation in a nation that has not accepted the Court’s jurisdiction, as well as in its efforts to gather information without the intelligence support of the P5, which may seek to avoid the political pressure associated with such an investigation. Nevertheless, past and present investigations in Darfur, Sudan, Kenya, and Ivory Coast demonstrate the willingness of the Office of the Prosecutor to undertake formal investigations in response to sufficient evidence without undue regard for any significant logistical difficulties they might be present.

Conclusion

The perception of the ICC as biased in its response to violations of crimes within its subject-matter jurisdiction is largely a byproduct of politically influenced decision-making at the UN Security Council and jurisdictional constraints on the ICC’s proprio motu authority which limit the ICC’s ability to independently investigate alleged perpetrators of heinous crimes including genocide, war crimes, and crimes against humanity. If the ICC Prosecutor’s proprio motu powers were expanded allow for universal investigative authority coupled with the opportunity for public reporting and requests for referral to the UN Security Council, the ICC could shift criticisms of selectivity and discrimination in prosecuting violators of these crimes toward their proper targets—the Security Council, the UN membership, and other non-state actors influencing the political decision-making process within the international community. In so doing, the proposed reform would counter the narrative of Africa bias at the ICC and protect the credibility of the ICC as an independent and impartial tool of justice.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Situation in Libya, ICC, ICC-01/11 available online [hereinafter Libya Situation]. ↩

2. 2.

   African Union Opposes Warrant for Qaddafi, N.Y. Times, July 2, 2011, available online. ↩

3. 3.

   Situation in Darfur, Sudan, ICC, ICC-02/05, available online. ↩

4. 4.

   Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters (Jan. 30, 2011), available online. ↩

5. 5.

   See Raj Kannapan, The International Criminal Court: Jesters and Justice, Wash. Times, Feb. 12, 2013, available online. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩

7. 7.

   See Situations and Cases, ICC, available online. ↩

8. 8.

   Luis Moreno-Ocampo Responds to Questions From Workshop Participants, in The Reckoning: Understanding the International Criminal Court available online (alleging the debate surrounding Africa bias at the ICC was “started and promoted by President Bashir”). ↩

9. 9.

   The State Parties to the Rome Statute, ICC, available online. ↩

10. 10.

    Tendai Moyo, Africa: ICC’s Bias, Flaws Long Overdue, AllAfrica.com, Nov. 3, 2011, available online (arguing that this extension of ICC jurisdiction to non-signatories is in contravention of the Vienna Convention on the Law of Treaties, under which “no country can be bound by the provisions of a treaty it has not signed”). ↩

11. 11.

    See, e.g., Security Council Referral on the Situation in Libya, S/RES/1970, at § 6 (2011), available online. ↩

12. 12.

    See Libya Situation, supra note 1. ↩

13. 13.

    Id. ↩

14. 14.

    Nick Cumming-Bruce, UN Rights Officials Urge Syria War Crimes Charges, N.Y. Times, Feb. 18, 2013, available online. ↩

15. 15.

    Stephanie Nebahay, Time to Refer Syrian War Crimes to ICC, Reuters, February 18, 2013, available online. ↩

16. 16.

    Rwanda’s Kagame says ICC Targeting Poor, African Countries, AFP, July 31, 2008, available online (Quoting Paul Kagame, President of Rwanda); see also, Moyo, supra note 10 (“Normally, we would have expected the ICC to spontaneously activate its legal system to immediately deal with [Americans complicit in abuses at Abu Ghraib in Iraq and Guantanamo Bay in Cuba] most of whom never faced any prosecution at home. However, nothing was done as the court remained completely disinterested and manifestly emasculated.”). ↩

17. 17.

    UN Security Council: Address Inconsistency in ICC Referrals, HRW (October 16, 2012), available online. ↩

18. 18.

    Rome Statute, supra note 6, at Article 12(3). ↩

19. 19.

    Rome Statute, supra note 6, at Article 13. ↩

20. 20.

    Rome Statute, supra note 6. ↩

21. 21.

    Rome Statute, supra note 6, at Article 15. ↩

22. 22.

    Rome Statute, supra note 6, at Article 53(1). ↩

23. 23.

    The States Parties to the Rome Statute, ICC, available online. ↩

24. 24.

    Communications, Referrals and Preliminary Examinations, ICC, available online [hereinafter Preliminary Examinations]. ↩

25. 25.

    Id. ↩

26. 26.

    ICC, OTP Response to Communications Received Concerning Iraq, 3 (and corresponding footnotes), (Feb. 9, 2006), available online . ↩

27. 27.

    Id. ↩

28. 28.

    About the Court, ICC, available online. ↩

29. 29.

    David Smith, New Chief Prosecutor Defends International Criminal Court, The Guardian, May 23, 2012, available online. ↩

30. 30.

    Rome Statute, supra note 6, at Article 121(1). ↩

31. 31.

    Rome Statute, supra note 6, at Article 121(3)-(4). It is worth noting that Article 121(6) provides for States Parties to withdraw from the Statute no later than one year following the entry into force of an amendment. However, given that the proposed reform would extend the ICC’s proprio motu investigative authority to nationals of non-states parties not under national or territorial jurisdiction of the court it appears self-interest would preclude States Parties from opposing universal investigative authority of potential criminal violations. ↩

32. 32.

    Rome Statute, supra note 6. ↩

33. 33.

    See, e.g., Nebahay, supra note 15. ↩

34. 34.

    Of the eight preliminary examination cases initiated by the ICC outside of Africa, none have resulted in a full investigation to-date and three have been closed. See Preliminary Examinations, supra note 24. ↩

35. 35.

    See Cumming-Bruce, supra note 14. ↩